Supreme Court At-a-Glance Contributor Scott A. Wanner, Obtained his J.D. from the University of Illinois. Practices in Portsmouth, New Hampshire.

No. 2020-0436

July 2, 2021

Vacated and remanded. 


  • Whether the statutory12-month period to correct conditions of abuse or neglect prior to the termination of parental rights under RSA 170-C:5, III can begin to run before actual notice was given to a non-accused, non-custodial parent.


The New Hampshire Division for Children, Youth and Families (DCYF) petitioned for non-custodial Father’s parenting rights to be permanently terminated more than 12 months after its initial finding of neglect of the minor child R.H. by Mother with sole custody. The circuit court ordered the termination, finding it was in the best interests of the child. Father appealed, challenging the adequacy of the notice he received, claiming it did not afford him the full twelve-month statutory period to correct the conditions of neglect and abuse occurring in Mother’s home. DCYF argued that the 12-month statutory period begins to run from the date of that finding, regardless of actual notice.  Vacating the termination of Father’s paternal rights, the New Hampshire Supreme Court articulated a new standard that actual notice must be given for the full 12-month corrective period for the permanent deprivation of paternal rights of a non-accused, non-custodial parent to be constitutionally-adequate.

The undisputed findings in the record from the court below establish that Father was neither directly accused of neglect nor the custodial parent of R.H.  Father’s address, telephone number, and whereabouts were unknown to DCYF.  Consequently, Father was not served with the initial neglect petition nor received notice of the adjudicatory hearing.  In his absence, the circuit court found Mother neglected R.H. by failing to maintain a safe and clean household and that R.H. was exposed to the risk of physical abuse by Mother’s significant other. Father was also not present for the dispositional hearing leading the circuit court to issue a final order finding Mother had neglected R.H. and setting forth separate conditions for Mother, Father and DCYF to meet to achieve reunification.

The record is undisputed that Father was absent for the circuit court’s 3-month review hearing, but the record was not clear about whether or not Father actually attended the 6-month review hearing.  Father did, however, attend the 9-month review hearing, at which time DCYF was ordered by the circuit court to serve Father all of the orders and petitions in the matter as well as inform Father about his due process rights under the State Constitution, including the right to request a full hearing as the non-accused, non-adversarial parent in a RSA chapter 169-C termination proceeding.  At the permanency hearing, Father was found not to have maintained consistent contact with R.H. over the preceding 12-month period. The circuit court granted DCYF’s petition terminating Father’s parental rights in a final order. The Supreme Court noted the trial court did not specifically address Father’s lack of actual notice argument in its rulings.

In vacating the termination of Father’s parental rights, the Court required that a circuit court must find that DCYF carried beyond a reasonable doubt the burden of proving that a minimum of 12 months’ actual notice was provided to non-accused, non-custodial parents so that they have an opportunity to correct the conditions of abuse or neglect prior to termination of their parental rights.  The Court expressly declined to pass upon questions as to whether constitutionally adequate notice requires any particular content.  However, the newly required finding as to the adequacy of notice includes determining whether and when the non-accused, non-custodial parent was provided actual notice of both the abuse or neglect finding and the effect on their parental rights of failing to correct the conditions.  The newly articulated high burden of proof reflects the significant protections afforded the fundamental right of parenting.


Laura E. B. Lombardi, Senior Assistant Attorney General, for the New Hampshire Division for Children, Youth and Families. Barbara L. Parker of Newport for Father by brief and orally.